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Entries in Sexual Orientation
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Earlier this week, the Seventh Circuit in an en banc (all member of the court participating as opposed to only three) decision held that Title VII’s ban on sex discrimination encompasses discrimination based on sexual orientation. The 8-3 ruling represents the first federal court of appeals ruling to find that Title VII covers sexual orientation bias.

While many state statutes prohibit discrimination on the basis of sexual orientation or gender identity, Courts across the country diverge on whether sexual orientation is protected under Title VII. This decision (Hively v. Ivy Tech Community College of Indiana) overruled previous Seventh Circuit precedent and makes it much more likely that the Supreme Court will grant review to determine whether Title VII prohibits sexual orientation bias. Judge Diane P. Wood authored the opinion and noted that the ruling needed to be “understood against the backdrop” of Supreme Court decisions that had discussed sexual orientation including the 2015 decision recognizing a constitutional right to same-sex marriage.

On Friday, November 4, 2016, the Western District of Pennsylvania issued an order denying Defendant’s Motion to Dismiss in EEOC v. Scott Medical Health Center (No. 2:16-cv-00225) finding that a claim of sexual orientation discrimination is a form of sex discrimination prohibited by Title VII of the Civil Rights Act. The order, penned by U.S. District Judge Cathy Bisson, refuses to adopt the Third Circuit’s prior rulings that sexual orientation is not a protected class under Title VII, noting that there have been “significant intervening legal developments that call into question how the [Third Circuit] evaluated Title VII in Bibby” and also noted that in Bibby, the Court was not faced with the same arguments that the EEOC had presented in the current matter.

Specifically, the Western District held: “Title VII’s ‘because of sex’ provision prohibits discrimination on the basis of sexual orientation,” and the court saw “no meaningful difference between sexual orientation discrimination and discrimination ‘because of sex.’”

Late last week, the Seventh Circuit issued an opinion in Hively v. Ivy Tech Community College, in which it held that Title VII provides no redress for discrimination of the basis of sexual orientation. The Seventh Circuit is the first federal court of appeals court to rule on the issue since the EEOC’s administrative ruling in July 2015 that bias based on sexual orientation is discrimination in violation of Title VII.

While the court relied on previous holding of the circuit that sexual orientation was not a protected case, the court provided an extended analysis of the EEOC’s 2015 decision in Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5, *10 (July 16, 2015), where the EEOC concluded that: “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” In support of this position, the EEOC has been relying in large part on the United States Supreme Court’s decision in Price Waterhouse where the Court held that gender stereotyping constituted discrimination on the basis of sex in violation of Title VII.

The last few weeks have been filled with filings and decisions in federal courts across the country regarding sexual orientation as a basis for a Title VII lawsuit. On March 1, 2016, the United States Equal Employment Opportunity Commission (“EEOC”) filed its first sexual orientation discrimination claims in Pittsburg and Baltimore alleging that two different companies unlawfully discriminated against individuals based on their sexual orientation. The lawsuits are brought under Title VII of the Civil Rights Act which prohibits the discrimination by employers against employees on account of their race, religion, sex or national origin. That’s right, sexual orientation is not listed as a protected class under Title VII.

Last week, a Massachusetts state court ruled on a motion for summary judgment finding that an all-girls Catholic School (Fontbonne Academy in Milton, Massachusetts) had violated Matthew Barrett’s civil rights when it withdrew a job offer after Barrett listed his husband as his emergency contact person on the school’s “new hire” employment form. The school rescinded the employment offer noting that it had an expectation that employees would model the school’s values—including the Catholic Church’s opposition to same-sex marriage. Barrett than sued the school alleging violation of state non-discrimination law, claiming that the decision violated state law because the school refused to hire him “because of . . . [his] sexual orientation.”

Monday, President Obama signed an Executive Order prohibiting companies that do business with the federal government from discriminating against employees based on gender identity and sexual orientation. The Order specifically amends Executive Order 11246, which prohibits federal contractors and subcontractors who do over $10,000 in government business in one year, from discriminating in employment decisions on the basis of race, color, religion, sex or national origin. Executive Order 11246 further requires federal contractors and subcontractors to take affirmative action to ensure equal opportunity in employment decisions such as hiring, promoting and training.